United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ANDREW SHORT Solicitor Appearing under the Employment Law Appeal Advice Scheme


 


MR JUSTICE HOOPER

1. This is an appeal against a decision of the Employment Tribunal chaired by Mr Caborn refusing the Appellant's application for a review on the grounds that it has no reasonable prospect of success.
2. The hearing took place on 17 January 2000 and the Tribunal consisted of the same Chairman and Members who had, in July 1998, heard the original applications made by the Appellant. We start with the extended reasons given for the decision in July 1998. The hearing took place over a number of days in July and the decision was sent to the parties in September. The Tribunal was considering 3 applications made to the Tribunal: a complaint of race discrimination relating to the Respondent's decision not to renew the Applicant's fixed term contract of employment that expired on 4 July, secondly, a complaint of race discrimination relating to the Respondent's rejection of the Applicant's application in July 1996 for further employment, and thirdly, a complaint of race discrimination relating to the Respondent's rejection of the Applicant's application in May 1997 for employment in the post previously held by him.
3. The Applicant represented himself. He gave evidence and called a number of witnesses and referred the Tribunal to a number of written statements. The Respondent was represented by Counsel and evidence was given by, amongst others, Gamon McLellan. Because this is only a Preliminary Hearing we take the liberty of summarising the complaints made by the Applicant in a very one short sentence whilst accepting that it may not do justice to all of his complaints.
4. In essence he complains and has complained over a number of years of discrimination against those of Syrian origin in favour of those of Egyptian origin in the BBC Arabic Services. Before looking briefly at the decision reached by the Tribunal we mention also that the Appellant has entered another originating application concerning a later rejection of one of his applications. That was considered by an Employment Tribunal in January 2000 and the appeal will be considered later today by this Tribunal as a Preliminary Hearing.
5. Mr McLellan wrote a letter to the Appellant which can be found set out at page 19 of the bundle giving the reasons why the Appellant's contract was not being extended. The BBC were concerned about two key areas: namely his inter-personal skills and his "microphone performance". We summarise very briefly the contents of that letter.
6. In paragraph 18 of the July1998 reasons can be found a reference to what we assume to be the evidence given by Mr McLellan, in particular the evidence that it was the Respondent's desire to appoint the best qualified people of the highest quality irrespective of national origin. In its conclusion the Tribunal was satisfied that the Applicant was not the subjected to less favourable treatment because of his race and the Tribunal further found in paragraph 27 that the reasons expressed by Mr McLellan for not reviewing the Applicant's fixed term contract, were the true reasons for not doing so.
7. The Appellant appealed that decision. He was granted the right to have a full hearing and in December 1999 this Tribunal, presided over by His Honour Judge Wilkie QC, dismissed the appeal. No mention was made in that appeal of the issues with which we are now concerned. Sometime in July 1999, after he had been granted the right to a full hearing, the Appellant came into possession of evidence given by Mr McLellan at the hearing of an application made by another person of Syrian extraction, the complaint being also brought against BBC. It is not necessary for us to refer to that because it was superseded by letters which make the issues clearer.
8. On 27 July Janet Youngson, a solicitor in the Litigation Department of the BBC wrote a letter to the Appellant, Mr Elabed. The letter reads as follows:

"In the course of a recent Industrial Tribunal it came to light that a paragraph in a statement made by Gamon McLellan in relation to your case numbers 48140/96, 2202170/97, 2205310/97, contains some inaccuracies.

Gamon McLellan's statement states that in the Board for Senior Producers in April 1994 the Board had selected Faisal Al Kasim as the successful candidate. In fact the date given was not accurate. The Senior Producer Selection Board in question was in 1994 and it took place on 24^th October and 4^th November 1994. Faisal Al Kasim was interviewed by the Board and was unanimously considered to be the outstanding candidate. However, before the Board announced the results Faisal Al Kasim withdrew his application because he had been offered a position as an announcer in World Service Television at a salary substantially above that for the Senior Producer post which he had applied for. That was the reason why the Board minutes noted that the successful candidate was Fouad Razak.

The BBC was concerned that this matter should be clarified, hence this letter to you"

9. On receipt of the information from the other hearing and on receipt of the letter of 27 July, the Appellant sought a review of the decision sent to the parties in September 1998 dismissing his three claims based on alleged race discrimination. The Appellant's complaint is that the contents of the letter of 27 July contradicted paragraph 7 of a statement made by Mr McLellan for the purposes of the hearing of the three complaints:

"I first came across Jamil (Elabed) when he joined the staff on his first day. I took him all round the Arabic Service and introduced him to all members of staff. This was standard treatment. I was pleased that there was another Syrian member of staff as were the other Syrians working in the Arabic Service: Alya Charabati (Senior Producer), Dr Abdulrazzak Al-Sayed (Deputy Editor) and Dr Ziad Hakim (Producer). Another syrian producer in the Service, Faysal Kassem, who had done first class work in the Service was seconded by me around that time to the new television channel, where soon afterwards he was offered a highly paid position as a news presenter. In April 1995, he was selected for the post of Senior Producer Current Affairs in the Arabic Service. Both Hassan Muawad and I were members of the board who selected him. However, he did not take up that offer preferring to accept the presenter post in BBC Arabic Television. After the Television channel closed in 1996, he went on to work in the same capacity in an international satellite television news station. He is now an established television presenter."

10. The thrust of the Appellant's complaint was that in that paragraph Mr McLellan was claiming that Mr Faysal Kasim had been selected for the post of Senior Producer, Current Affairs in the Arabic service. The statement also refers to Mr Kasim refusing to take up the "offer" because by then, following a secondment, he had found himself better employment as a news presenter in the television channel also operated as we understand it by the BBC World Service.
11. The letter of 27 July, so the Appellant submitted, put things in a different light. According to the letter the board had selected Faisal Al Kasim. The Appellant's complaint was that the letter of 27 July 1999 put the matter in a different way. According to that letter he had been selected as the successful candidate, not in 1995 but in 1994. Mr Short who has, if we may say so, conducted this Preliminary Hearing impeccably and has been of the greatest help to this Tribunal, rightly does not take any point on the date. The letter states that he was considered to be the outstanding candidate but does not say that he was ever offered the employment.
12. At the Review hearing a further letter was produced by the BBC. It is dated 7 November addressed to Mr Kasim from the Personnel Officer in the World Service. That letter states:

" Thank you for attending the selection panel interview on 24^th October 1994 and for informing us before the board was reconvened on 4^th November that you wished to withdraw your application as you had been offered a contract by Arabic Television.

Members of the selection panel would like me to convey that you were considered a strong candidate for the post of Senior Producer and should be encouraged to apply for any similar vacancies in the future if this fits in with your career plan.

We would like to wish you all the best with your new contract and thank you for the contribution you have made and will no doubt continue to make to the Arabic Service.

If you would like any feedback on your motivational questionnaire please ring Barbara Milliken on 07-14758. As you are aware this was not in any way a deciding factor in the selection process but, if are interested, I would be happy to explain how it was helpful to in making the interview more focused and relevant to you."

13. That letter puts again a possible different slant (so it is submitted on behalf of the Appellant) in that Mr Kassim is not being told he was selected but that he was considered a strong candidate. It may be that the BBC felt it appropriate not to tell him that he had been selected when they knew that he did not want to take up any appointment. We understand why an employer might write that letter. But nonetheless it adds a little further confusion to the picture.
14. With that material, the Appellant in person sought a review. The Appellant sought the review on the ground that the decision of 8 September 1998 was based "…..wholely or in part on perjured evidence". The Tribunal in its decision went on in paragraph 7:

"Whilst the Applicant has identified an area of discrepancy in the evidence of Gamon McLellan to this Tribunal in July 1998 and that given by him in July 1999 in the case of Jiad v BBC Arabic Service, this Tribunal is satisfied that the area of discrepancy is neither material to its Decision as promulgated nor would it have affected its decision that the Applicant was not subjected to racial discrimination had it been presented in July 1998. In these circumstances the Tribunal accepts the Respondents' submission that the Applicant has not established the evidential discrepancy identified in the course of this application for review was either material to or influential in the Tribunal's Decision of September 1998. Accordingly on this ground alone the Tribunal has concluded that the Applicant's application has no reasonable prospect of success."

15. Mr Short has in an amended ground of appeal for which we give leave identified what he submits is a serious error in the reasoning of the Tribunal. It might be thought on reading through that paragraph that the Tribunal must have concluded that they did not accept that Mr McLellan had lied. Mr Short frankly accepted, for the purposes of this Preliminary Hearing, that if theTribunal had made such a finding of fact then the "discrepancies" between the statement and the correspondence thereafter could be fully explained and would not have undermined the decision that had been reached by the Tribunal hearing three claims. However, as Mr Short pointed out, the Tribunal recorded in paragraph 10 that Mr McLellan had not given evidence before it and then went on to say:

"This decision therefore does not extend to making any finding with regard to whether his evidence before this Tribunal in July 1998 as compared to his evidence in the case of Jiad v BBC Arabic Service was either inaccurate or misleading."

16. As we understand that passage, the Tribunal was specifically deciding not to resolve the issue whether or not Mr McLellan had been telling the truth. Mr Short's submission is that not having resolved that issue, how could it decide that the evidence now being presented by the Appellant was evidence which would not have undermined the original decision? We take the view that that is an arguable ground. It may be that the Appeal Tribunal hearing this appeal will itself examine the material and decide that it could not be said that Mr McLellan was lying. However, that is not a task which we could possibly undertake today on a preliminary hearing.
17. On that ground we order a full hearing and direct Mr McLellan to provide a statement explaining the background to the various matters to which we have referred. This appeal however would not succeed if there were other grounds upon which the Tribunal had relied, which would inevitably have prevented any appeal from being successful. The Tribunal gave two other reasons. It referred to the fact that the application was out of time. However, the Tribunal said that if the application had had merit then it may well be that they would have extended the time limit. Clearly this information did not come in to the Appellant's possession until about July and it was very shortly thereafter, as we understand it, that he submitted his application for a review.
18. Furthermore, Mr Caborn has confirmed that had the application any prospect of success the time limits would have been enlarged. That therefore does not operate as a bar. We were much more concerned about the third ground relied upon by the Tribunal for reaching the conclusion that the application for review should be dismissed. The Tribunal relied on the fact that the Appellant was seeking a review after the hearing of the Employment Appeal Tribunal which itself had taken place after he had come into possession of the information in July 1999.
19. The Tribunal felt that it was "no longer empowered" to conduct a review hearing in these circumstances. That, Mr Short says, is arguably an error of law on the part of the Tribunal. That causes us some concern, but it seems unlikely that the Tribunal thought that it had no discretion. Mr Short then refers us to the approach to the exercise of discretion adopted by the Tribunal when considering the issue of the time limit.
20. There are however, further problems. In his notice of appeal the Appellant refers to correspondence with the Employment Tribunal and the Employment Appeal Tribunal and he draws certain conclusions from that. More importantly however, he states in paragraph 3, page 2 of the bundle:

"My Representative, who was handling my appeal case only, also confirmed this advice."

21. The legal representative was Mr Birtles instructed by Messrs G Singh, Solicitors, 13 The Mall, Ealing, London W5 2PJ. If the Appellant had received that advice then that could arguably undermine this part of the Tribunal's conclusions. Our instinctive reaction remains that the proper place for making the complaint made before the Employment Tribunal was before the Employment Appeal Tribunal.
22. It is clearly in the interests of all concerned and particularly the Respondent that all matters be resolved with some degree of finality. Nonetheless we do not feel, given the advice that he says he received from his representative, that we can prevent him arguing the appeal on the grounds that the matter should have been raised before the Employment Appeal Tribunal.
23. However, we take the view that the Employment Appeal Tribunal hearing this appeal will want evidence that the Appellant did receive the advice to which he refers. The Appellant should be prepared to waive his legal professional privilege if he wishes the appeal to proceed.
24. We therefore order that in respect of this matter this appeal will only proceed if the Appellant waives his professional privilege. That will then permit the Registrar to ask Mr Birtles (and whoever was responsible in the Solicitors' firm for the case) to explain to the Appeal Tribunal what advice was given.

(Instructions taken)

25. In the light of Mr Short's instructions that the Appellant waives his legal professional privilege, we instruct the Registrar to write to Mr Birtles and to the firm of Solicitors to draw their attention the paragraph 3 on page 2 of the notice of appeal and invite their comments as to whether they did or did not give the advice there set out.